The revised city ordinance on smoking in bars, which was put off for a week, will come up again tomorrow. The Austin attorney who successfully sued to have parts of that city’s anti-smoking law overturned has sent a letter to Council asking that they make some more changes before they vote again.
Attorney Marc Levin, who represented bar owners and smokers in a lawsuit that prompted a judge earlier this month to rule that Austin bar owners can’t be held liable if a customer refuses to stop smoking because the city’s law is too vague, said in a letter that Houston’s proposal has its own problems.
“I very much hope that you postpone voting on the proposed smoking ordinance until its economic and legal implications can be more fully evaluated,” wrote Levin, who also said he believes restaurant and bar owners will lose business if a stricter ban is implemented in Houston.
City Attorney Arturo Michel said his staff is considering Levin’s suggestions, but he believes the wording of the ordinance is sufficient.
“I didn’t see anything in that letter that caused me to think we’d have to rework (it),” he said. “I think our ordinance is fine in terms of being upheld in court.”
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Houston’s proposal would require a “person in control of an area where smoking is prohibited” to ask a customer to stop smoking. The owner could not be held liable if the individual did not comply.
Levin suggested the vague nature of that wording could cause problems.
“Would that be the owner, a manager, a bartender or doorman?” he asked. “It seems that the person would have had to have seen the person light up. If this is indeed the case, working-class bartenders are going to bear the brunt of this ordinance.”
Michel said he did not believe it was too vague. “It’s drafted to try to capture the different types of people who would be (enforcing the law) in a bar at that time,” he said.
It was the enforcement provisions in Austin’s law, which was approved by voters in a referendum last year, that caused problems there. U.S. District Judge Sam Sparks said that owners must post “no smoking” signs and remove ashtrays but do not have to enforce the rule beyond that, according to an online copy of the ruling.
Based on what I’m reading here, I tend to think Michel is right, and that the Houston ordinance does not have the same flaw that doomed Austin’s law. I’m not an attorney, and I’m not reading from the original source here, so take all that with an appropriate level of salt. All I can say for sure is that I’m not getting slapped in the face by something that’s obviously got the same issues as the Austin statute. Whether that’s sufficient to keep the lawyers happy is up to them.
Does anyone know if this is the same Marc Levin who used to run a number of conservative college reviews in Houston and Texas?